Financial Services Reform (Consequential Provisions) Bill 2002

Bills Digest No. 52 2003-04

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Background

Items 1-27repeal various definitions and
concepts in existing subsection 3(1) and sections 3AA and 3AD-AF
that deal with aviation security matters. With the transference of
such matters to the proposed Aviation Transport Security Act
(ie the Aviation Transport Security Bill 2003), these definitions will be
redundant.

Items 28 and 29expand the grounds on which
may Minister to suspend or cancel an international airline licence
to include where an airline or any of its aircraft fail to comply
with the proposed Aviation
Transport Security Act or associated regulations.

Items 30and 31 repeal existing Part 3
and 3A respectively. These will be now redundant due to the
transference of aviation security matters to the proposed
Aviation Transport Security
Act.

Items 32and 33 amend section 23A.
Section 23A lists what decisions made under theAir Navigation Act 1920 are
reviewable by the Administrative Appeals Tribunal. Some of the
decisions are made under existing Part 3 and 3A. With their repeal
under items 30
and 31, they
are to be deleted from the section 23A list.

Item 34 repeals existing
paragraph 26(2)(a) which currently enables the making of
regulations under the Air
Navigation Act1920 for the purposes of aviation
security. This power will
be now redundant as regulations will be made under the
proposed Aviation Transport
Security Act.

Item 35 repeals existing
section 28, which provides instruments relating to aviation
security under the Air
Navigation Act or regulations are effectively exempt from the
provisions of Legislative
Instruments Act 1995. That Act was never enacted (ie it does
not exist) and therefore section 28 plays no role.

Existing subsection 8(1) of the Air Services Act 1995 lists the
various functions of Airservices Australia. Paragraph 8(1)(f)
include those conferred on it under the Air Navigation Act 1920.
Item 1 amends
paragraph 8(1)(f) to include functions conferred by the proposed
Aviation Transport Security Act.

Item
2 inserts a new subparagraph into existing section
13 into the Australian Protective Services Act 1987.Section 13 details the
powers ofan Australian Protective Service Officers to arrest
persons without a warrant for offences under various listed
legislation. Item
2 adds the proposed Aviation Transport Security Act
and regulations made under the Act to the list. The Explanatory Memorandum comments
that this is in recognition of the special role which APS officers
will have along with police officers acting as law enforcement
officers under the Aviation Transport Security Act .(2)
It is notable that currently section 13 of the Australian
Protective Services Act 1987does not allow for arrest without
warrant for an offence created by regulations made under
any of the listed legislation. Also, by including the
proposed Aviation Transport
Security Act and regulations under section 13, persons
suspected of (say) being about to commit an offence under the Act
or regulations potentially become subject to proposed expanded APS
powers regarding requiring
a person s name and address, stopping and searching them etc. These
expanded powers are proposed in the Australian Protective Service
Amendment Bill 2003: see discussion in the relevant Digest.(3)

Existing subsection 23(1) of the Crimes
(Aviation) Act 1991creates offences of the carrying or
placing dangerous goods on some aircraft. Subsection 23(2) provides
that the offence does not apply to certain situations, such as when
it is done with authority under listed various legislation.
Item 3
adds the proposed Aviation Transport Security Act
or, regulations made under that Act, to this list.

The
Sea Installations Act 1987 regulates the construction and
operation of mainly tourism-related structures in Commonwealth (as
opposed to State) waters. It also applies certain listed
Commonwealth legislation to, amongst other things, the activities
of aircraft that are operating in connection with such structures.
Item 4
adds the Aviation Transport
Security Act to this list.

Item 1 provides the usual
general power to make regulations for the carrying out or giving
effect to the Act. It also states that regulations may to be made
to allow, amongst other things:

particular provisions of the Air Navigation Act 1920 to
continue to have affect even once these provisions have been
replaced by the proposed Air
Transport Security Act, and

transport security programs approved under the Air Navigation Act 1920 to
continue in force as though these programs were approved under the
proposed Aviation Transport
Security Act.

Item 2 provides that new
subsection 15(2) of the proposed Aviation Transport Security Act -
which requires in certain cases that an aviation industry
participant must comply with the transport security programs of
other participants - does not apply to programs continuing in force
by virtue of item
1 above. The Explanatory Memorandum
comments:

This clause has been included because under the
new Aviation Transport Security Act certain persons will have
responsibilities to comply with programs of other people where they
have seen the part of the program which applies to them. It would
be unreasonable if this were extended to persons who are covered
under existing programs where they have not consulted(4)
with on the part of the program which will apply to
them.(5)

As mentioned earlier in this Digest,
item 2 of
schedule 2 is
an expansion of Australian Protective Services officer s powers of
arrest without warrant. Item 2 also acts to import
other significant new law enforcement powers proposed under
theAustralian Protective Service Amendment
Bill 2003.

Angus Martyn
13 October 2003
Bills Digest Service
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